Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers
For the purposes of my argument, I adapt Professor Meir Dan-Cohen’s distinction (which he in turn borrowed from Jeremy Bentham) between “conduct” rules and “decision” rules. Bentham and Dan-Cohen make this distinction in the context of substantive criminal law; for their purposes, “conduct” rules are addressed to the general public in order to guide its behavior (for example, “Let no person steal”) and “decision” rules are addressed to public officials in order to guide their decisionmaking about the consequences of violating conduct rules (for example, “Let the judge cause whoever is convicted of stealing to be hanged”). But as any teacher of both substantive and procedural criminal law knows, constitutional criminal procedure is a species of substantive criminal law for cops. Thus, for my purposes, “conduct” rules (my “constitutional norms”) are addressed to law enforcement agents regarding the constitutional legitimacy of their investigative practices and “decision” rules (my “inclusionary rules”) are addressed to courts regarding the consequences of unconstitutional conduct.